June 15, 2006

Worried Justice O'Connor at oral argument in Hudson v. Michigan last Janauary. The case was reargued after Alito replaced O'Connor, and now, with Alito's vote, the Supreme Court has ruled in favor of the state, permitting the use of evidence where the police failed to follow the "knock-and-announce" rule established in Fourth Amendment law.

When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few?...

Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy....

Suppression of evidence... has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” ... which sometimes include setting the guilty free and the dangerous at large...

What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

Justice Kennedy's vote was needed for the majority, and he wrote a separate opinion, denying that "violations of the [knock-and-announce] requirement are trivial or beyond the law’s concern" and that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

That's not how the dissenters saw it. Justice Breyer worried about letting the "police know that they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry." For a spirited defense of the exclusionary rule, read the whole thing.

UPDATE: The press is doing a bad job of reporting this case! I keep hearing and reading assertions that the Court said the police didn't commit a violation, when the government conceded that they did! This case was about what remedy was available for the violation.

18 comments:

- and high-handed Clarence beamed a broad smile to his clerks and told them drug dealers will now just have to sprint a little faster to the toilet to flush the goods. "let the suckers run now, by God!" he allegedly said to the nodding heads lifted above computer screens as he stormed back to Chambers, triumphant.

At first glance, an excellent ruling. Justice Scalia's discussion about the separation of violation and remedy is crucial and sound.

Note that it keeps alive the possiblity of several remedies for constitutional violations by the police. Say, for example, that a clear no-knock violation occurs, which results in somebody being shot to death thinking their house is being robbed. The deceased's relatives, under this opinion, would still be able to sue the police for deprivation of civil rights. A clear constitutional violation occured, resulting directly in the death. Contrary to the dissent's fears, that leaves plenty of disincentives on the police to discourage regular violations of no-knock. Heck, no-knock searches can be very dangerous for them, except when they have good reason to believe that the occupants of the house will shoot at people known to be police.

I'm not sure I agree that Justice Breyer offered a "spirited defense" of the exclusionary rule. To me, his opinion seemed heavily fixated on quantitative embellishment of the role of the exclusionary rule in the court's 4th Amendment jurisprudence, but was lean on reasoning as to why it is important in the context of a knock-and-announce violation. Baldly asserting over and over that a search pursuant to a valid warrant is illegitimate if not preceded by the requisite number of seconds of waiting at the door is not, to me, very persuasive.

The centerpiece of Justice Breyer’s reasoning was an appendix listing all the cases in which the exclusionary rule has been applied, the intended implication of which was apparently that it is highly unusual for the court not to reflexively apply the rule to any 4th Amendment violation. This method of argument betrays an unwillingness to acknowledge how grossly disproportionate the exclusionary rule is to a knock-and-announce violation.

Justice Breyer offered virtually no response to part III-B of Justice Scalia's opinion in which Justice Scalia carefully analyzed the costs and benefits of application of the rule in the context of a knock-and-announce violation. Unless Justice Scalia is entirely wrong in asserting that the Court’s precedents require such a balancing, I think he easily got the better of this argument.

Notwithstanding the inevitable weeping and wailing about the imminent demise of the exclusionary rule or knock-and-announce rule, or both, I don’t think this is a particularly significant holding, except insofar as it restores a small measure of perspective to 4th Amendment jurisprudence. The exclusionary rule is a Court-created prophylactic measure designed to put teeth into the 4th Amendment in the absence of effective alternative deterrents. As Justice Scalia took pains to explain, there are now several alternative deterrents to knock-and-announce violations (better police training, Sec. 1983 claims, etc.). Thus, the severe exclusionary rule remedy is not warranted for knock-and-announce violations.

...part III-B of Justice Scalia's opinion in which Justice Scalia carefully analyzed the costs and benefits of application of the rule in the context of a knock-and-announce violation. Unless Justice Scalia is entirely wrong in asserting that the Court’s precedents require such a balancing, I think he easily got the better of this argument.

Uh, right.

And this is the Scalia who (in dissent in Maryland v. Craig) said:

"The Court today has applied "interest-balancing" analysis where the text of the Constitution simply does not permit it. We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings."

I understand that Nino likely doesn't think of the exclusionary rule as being as "clear and explicit" a constitutional guarantee as the confrontation clause. Nonetheless, I have to wonder if he had to have a clerk write that section for him, what with the whole idea of balancing being so anathema to him.

Pooka,I think you need to read again, carefully, today's opinion, the opinion from wich you quote (Maryland v. Craig, 97 U.S. 836) (1990) and Wilson v. Arkansas, 514 U.S. 927 (1995). In Wilson, the Justice Thomas explained for the unanimous court that the knock-and-announce rule was part of the reasonableness required by the Fourth Amendment, "a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry." As Jeff said, even if this ruling were not correct as an original matter, it would certainly be an accurate application of existing precendent.

Now, you cite Craig to suggest, presumably, that Scalia is being hyporitical for using a balancing test here while declining to use one in the sixth amendment context. But that is an apples and oranges comparison. The balancing test Justice O'Connor set out in Craig attempted to balance a right explicitly guaranteed by the sixth amendment against practical expediency; today's opinion seeks to balance practical expediency against a factor that is both in terms of text and precendent a part of a subjective and context-sensitive test for reasonableness. You cannot compare the two.

I think Simon puts it just right. To ignore the distinction he makes is to elevate the Court's own improvised rules (such as the exclusionary rule) to the status of explicit constitutional guarantees. Justice Scalia has to my knowledge been quite consistent in refusing to do this. If I recall correctly, his Dickerson dissent is a good source of his views on this important distinction.

Pooka's comment is more snark than substance. Of course Scalia regards "the exclusionary rule as being [less of a] 'clear and explicit' ... constitutional guarantee [than] the confrontation clause." For one thing, the confrontation clause is found in Amend. VI; the exclusionary rule was invented by the Court as a remedy for certain violations of constitutional guarantees. IN Mapp v. Ohio, the Court constitutionalized the exclusionary rule as a remedy for certain violations of 4th Amendment rights based on its view of the "experience" and practicalities of policing without such a rule. Obviously, since that was the justification, it can hardly be doubted that the justification will apply less forcefully, or not at all, as later "experience" and notions of practicality may dictate.

Second, Scalia's analysis does not turn on "interest balancing." His point is that the exclusionary rule applies in circumstances where the constitutional violation has a direct causal connection to the discovery of the evidence sought to be suppressed, which Scalia says is a necessary but not sufficient requirement before exclusion of evidence will result. Scalia contends that there is no such connection here because the violation related to the manner of entry, not the legality of the ensuing search.

Breyer's answer is almost incoherent. Relying on the Restatement (2d) of Torts, Breyer says that the violation of the knock-and-announce rule here was the but-for cause of the discovery of the evidence, because the police were in the house only "as a result" of that violation. Breyer's point is true only in the most trivial sense -- the police couldn't conduct the search without entering the house, and they only entered the house once.

But the issuance of the warrant meant that the police had every right to enter; thus entry at almost exactly the time and place was a foregone conclusion. The violation of the knock-and- announce rule resulted only in an entry by police by, at most, a minute before they would otherwise have been entitled to enter. Thus the violation here was quite technical: Scalia points out (and Breyer does not dispute) that the police waited 5, 10, 15 seconds (evidently no one brought along a stop watch) before entering. The suggestion in the opinions is that perhaps 20-30 seconds, maybe a minute, was the required "reasonable wait time" here.

Breyer concedes the obvious fact that the police would have entered within a minute or so of their actual but inadequate "wait period" and would have found exactly the same evidence -- but then dismisses that fact as merely hypothetical. According to Breyer, what matters is not what the police would, should or could have done, but only what they did do. Breyer thus turns the causation analysis into a formalistic kind of inquiry, and brushes aside what everyone knows are the real world practicalities here.

Perhaps some find that blinkered approach to "causation" and reality persuasive. I don't.

The extended discussion of "social costs" and remedies in both Scalia's and Breyer's opinions is hardly necessary to the result, since the majority found a necessary condition for the application of the exclusionary rule to be absent. For different reasons, both Scalia and Breyer are concerned to show whether a constitutional violation, as here, might result in any effective remedy without application of the exclusionary rule -- Scalia says yes, and Breyer says no. But all of that discussion is ultimately concerned with whether the result -- a violation that is not a but-for cause of the discovery of evidence -- can be deterred without application of the exclusionary rule. And it all qualifies as dicta, since the Court's conclusion that a necessary condition was absent rendered the entire discussion unnecessary.

Perhaps not surprisingly, the weakest opinion was Kennedy's concurrence. He joined all of the essential portions of Scalia's opinion, and they offered a few caveats that didn't make much sense. Breyer quotes Kennedy's concern that "things might be different" if there were a "widespread pattern" of violations. But the analysis Kennedy joined -- holding that the exclusionary rule only applies where there is a real world (as opposed to Breyer world) causal connection between the violation and the discovery of the evidence sought to be suppressed -- makes it irrlevant whether there was or is any "widespread pattern" or not.

The reasoning here is clear. The court is preparing for the day when they overturn Lawrence V. Texas. They will get search warrents to search people's homes if they suspect there is some ass-fucking or oral sex going on, then they will break down the door (without knocking of course) and start arresting en masse gays and straight couples who enjoy oral sex.

The press is doing a bad job of reporting this case! I keep hearing and reading assertions that the Court said the police didn't commit a violation, when the government conceded that they did! This case was about what remedy was available for the violation.

Yeah, more and more I find this to be the case whenever legal news was reported. Absent a link to a case, I have very little faith in what I read about court decisions. I think the problem is that the media aren't exactly equipped to do good legal analysis, and they aren't good at parsing what other people assert to be true about cases. So they just get buffeted around.

The public isn't likely to get a good understanding of the issues at stake from such reporting, but what else is new?

"the exclusionary rule was invented by the Court as a remedy for certain violations of constitutional guarantees. IN Mapp v. Ohio, the Court constitutionalized the exclusionary rule as a remedy for certain violations of 4th Amendment rights."

Technically it was invented in Weeks v. United States - Mapp just applied it against state law enforcement.

Has anyone else noticed, by the way, that most of the media detractors of this decision are arguing as if the court abolished either the exclusionary rule, the knock-and-annouce rule, or both? Is this duplicity, or just sheer, bloody-minded refusal to read the opinion?

"Say, for example, that a clear no-knock violation occurs, which results in somebody being shot to death thinking their house is being robbed. The deceased's relatives, under this opinion, would still be able to sue the police for deprivation of civil rights."

Patrick, what I'd say was that this was a wholly inadequate remedy. I'd only be satisfied if the officer who pulled the trigger was up for Aggravated First-Degree Murder, and anyone involved in the raid, or its planning, was indicted as a co-conspirator to commit murder. Yes, that's a high standard to have to achieve, but it's what I think should be required before the police are allowed to mount military-style assaults on citizens.